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9th Circuit Snapchat Sec. 230 Ruling
9th Circuit Snapchat Sec. 230 Ruling
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The Honorable James David Cain, Jr., United States District Judge
for the Western District of Louisiana, sitting by designation.
2 LEMMON V. SNAP
SUMMARY **
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LEMMON V. SNAP 3
COUNSEL
OPINION
I.
A.
B.
II.
III.
A.
1
The statute defines an “interactive computer service” as “any
information service, system, or access software provider that provides or
enables computer access by multiple users to a computer server,
including specifically a service or system that provides access to the
Internet . . . .” 47 U.S.C. § 230(f)(2). Meanwhile, an “information
content provider” is “any person or entity that is responsible, in whole or
in part, for the creation or development of information provided through
the Internet or any other interactive computer service.” Id. § 230(f)(3).
10 LEMMON V. SNAP
that term. Kimzey v. Yelp! Inc., 836 F.3d 1263, 1268 (9th
Cir. 2016) (citation omitted); see also Barnes, 570 F.3d
at 1101. According to the amended complaint, the Snapchat
application permits its users to share photos and videos
through Snap’s servers and the internet. Snapchat thus
necessarily “enables computer access by multiple users to a
computer server,” 47 U.S.C. § 230(f)(2), and Snap, as the
creator, owner, and operator of Snapchat, is therefore a
“provider” of an interactive computer service. Id.
§ 230(f)(3).
B.
2
The district court and the parties have, at various times, suggested
that this aspect of the Barnes test is undisputed. Having parsed the
Parents’ arguments and citations before both our court and the district
court, we do not agree. Though those arguments could have benefited
from greater analytic exposition, the Parents have sufficiently preserved
this issue for our review. In any event, it is within our discretion to reach
this issue. See In re Mercury Interactive Corp. Secs. Litig., 618 F.3d
988, 992 (9th Cir. 2010) (noting we may exercise our discretion in this
regard when “the issue presented is purely one of law and . . . does not
depend on the factual record developed below” (citation omitted)). We
exercise that discretion here, given that Snap addressed this issue both in
its answering brief and before the district court.
LEMMON V. SNAP 11
3
The parties have agreed that the tort law of either California or
Wisconsin governs in this case. See generally Restatement (Second) of
Torts § 398 (1965) (“A manufacturer of a chattel made under a plan or
design which makes it dangerous for the uses for which it is
manufactured is subject to liability to others whom he should expect to
use the chattel or to be endangered by its probable use for physical harm
caused by his failure to exercise reasonable care in the adoption of a safe
plan or design.”).
LEMMON V. SNAP 13
4
Nor would proving causation through the snap that Landen sent
shortly before his death implicate § 230(c)(1) immunity, because the
Parents do not fault Snap for publishing that photo message. Instead,
that snap merely suggests, as circumstantial evidence, that the alleged
negligent design of Snapchat had the very causal effect that the Parents’
otherwise allege. By contrast, we note that the Parents would not be
permitted under § 230(c)(1) to fault Snap for publishing other Snapchat-
user content (e.g., snaps of friends speeding dangerously) that may have
incentivized the boys to engage in dangerous behavior. For attempting
14 LEMMON V. SNAP
C.
By its plain terms, and as the last part of the Barnes test
recognizes, § 230(c)(1) cuts off liability only when a
plaintiff’s claim faults the defendant for information
provided by third parties. 47 U.S.C. § 230(c)(1). Thus,
internet companies remain on the hook when they create or
develop their own internet content. See Fair Hous. Council
of San Fernando Valley v. Roommates.com, LLC, 521 F.3d
1157, 1162 (9th Cir. 2008) (en banc). And they also may
face liability to the extent they are “‘responsible . . . in part,
for the creation or the development of’ the offending
content” on the internet. Id. at 1162 (quoting 47 U.S.C.
§ 230(f)(3)); see also Kimzey, 836 F.3d at 1269 (asking
whether a defendant “ma[de] a material contribution to the
creation or development of [the] content” underlying a given
claim).
to hold Snap liable using such evidence would treat Snap as a publisher
of third-party content, contrary to our holding here. See Section III.C.
infra.
LEMMON V. SNAP 15
***
IV.
V.